But, to those who regard the decision of the Supreme Court as conclusive, it is important to consider other objections to the act. Conceding the power of Congress to legislate upon this subject, I think the act in question is unconstitutional, because it does not give the person seized a trial by jury at the place where he is so seized, and before he is put in the custody of the claimant, with a warrant to transport him. * * * In my judgment, the claim of service secured by the Constitution, if it requires a law to enforce it, and if Congress can pass such a law, can only be provided for by an act which secures the trial of a question in a regular suit before a jury. The seventh amendment to the Constitution provides that, “in suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved,” etc. This amendment, as well as the fifth, which declares that “no person shall be deprived of life, liberty, or property, without due process of law,” grew out of the opposition manifested to the adoption of the Constitution, because it did not, in terms, provide for the trial by jury in civil cases. It is needless to remind an American of the anxiety with which this institution has been watched. It is well described by Mr. Justice Story, in the case of Parsons vs. Bedford, 3 Peters, 446. Justice Story also explains what is meant by “a suit at common law,” in the section quoted. It covers all suits except those of equity, admiralty, or maritime jurisdiction; and the Judiciary Act of 1789 (chapter 20, sections 9, 12, and 13), carries this construction into practical operation. It will hardly be claimed that Congress can take a case which entitles a party to a jury, and deprive him of a jury by converting it into a summary proceeding, or that they can, in the same way, deprive him of his liberty or property without due process of law. If they could do this, the trial by jury and the due process of law secured by the Constitution become a mockery. Treating this as a mere question of property exceeding twenty dollars in value, entertain no doubt that it is a case where a jury trial is secured by the Constitution. It may be said that a person seized can try the question of his right to freedom by a jury at the place whence he fled. This is a consolation, to be sure, to a man whose freedom has been destroyed by seizure and transportation from his home; and, if he could get his witnesses to the place where the claimant concludes to take him, he could have a trial. But the act in question provides no jury trial anywhere; there is no obligation on the claimant to take the person he seizes to any particular place; and if I have a right to try the question of title to property I hold at the place where the property is, and where the demand is made, how can it be argued that I have no such right when the demand made is for my thews and sinews? It is urged that juries would not render verdicts in favor of claimants, where the right was established. This does not correspond with my observation of jury trials. On the contrary, whatever prejudice jurors may feel against the law, I have hardly ever known them to fail in obeying the directions of the Court upon a point of law. It is also suggested, that the expense of recovering a fugitive by this mode would amount to a destruction of the right. If such an evil exists, it is incident to this unfortunate relation. It certainly furnishes no reason why the Constitution should be violated, and a safeguard broken down in reference to the liberty of a human being, which is secured to him in defending a horse or a bale of cotton.That the provisions of this act were harsh and cruel is certain; but that any act providing for the recovery of fugitives from Slavery could have been at once humane and efficient, is not obvious. And, as the capture and rendition of alleged slaves under this act claimed a large share of public attention during the three or four years immediately following its passage, while the residue of the Compromise measures evoked no special excitement, and had none other than a noiseless, passive operation, it is not remarkable that greater success in slave-hunting, with greater alacrity on the part of the Free States in ministering to such success, seemed to the general Northern mind the sum and substance, the “being's end and aim,” of the Compromises of 1850. And, as the Federal Administration, whereof Mr. Fillmore remained the official head, and Mr. Webster became the animating soul, gave prominence and emphasis to the exertions of its subordinates
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